Marye v. John T. Dyche, Gates, Gillespie & Co.

| Miss. | Apr 15, 1869

Peyton, J.,

delivered the opinion of the court.

John T. Dyche, Joseph R. Gates, A. J. Gillespie, and D. T. Saffarons filed their bill of complaint in the Chancery Court of the county of Sunflower, against Mary P. Marye, James M. Wadlington, Isaac R. Dyche, and Eli Waites, alleging that the said James M. Wadlington and Isaac Dyche leased from. the said. Mary P. Marye a plantation situated in said county, for the year 1867, and that they employed on said plantation a eonsiderable number of laborers, and being without sufficient means to carry on said plantation, they had to borrow the same on the credit of the crop to be raised by them.

The complainants further allege in the bill that said Gates, Gillespie, and Saffarons, under firm name and style of Gates, Gillespie & Co., of New Orleans, in the State of Louisiana, advanced money and supplies to the said Wadlington & Dyche to the amount of about $4300, to secure the payment of which they executed a mortgage to the said 'Gates, Gillespie & Co. on the crop raised on said plantation, which was duly recorded and enrolled in the proper offices in September, 1867.

And that complainant, John T. Dyche, also furnished to said. Wadlington and Isaac Dyche supplies for said plantation to the amount of $4900, or thereabouts, and that to secure the same, on the 3d day of November, 1867,' they executed to him their certain promissory note in writing of that date for the sum of $5000, and payable one day after the date thereof, and made the same a lien on the crop, and the mules and other articles purchased with the means thus advanced, under the act of the legislature' to encourage agriculture, approved February the 18th, 1867. Which said note operating as a lien as aforesaid, was. duly enrolled and filed in the clerk’s office of said county on the .12th day. of December, 1867.

That the claim of Gates, Gillespie & Co. has been reduced by payments to about $1200, which yet remains due them.

The complainants further state in their bill that on the 16th day of December, 1867, the said Mary P. Marye procured a distress warrant against the property of the said Wadlington & Dyche for rent, to the amount of $3600, and had the same levied on the crop then on said leased premises, to wit, on 1800 bushels of corn and 16 bales of cotton, besides five mules and a wagon, which were on said plantation when the seizure was made. And that said crop was more than sufficient to pay said Gates, Gillespie & Co., and that the balance due them and the claim of John T. Dyche constitute prior liens on said crop to that created by said attachment for rent.

The complainants state that said five mules and wagon levied on for the payment of the rent as aforesaid, are the property of the complainant, John T. Dyche, who, early in the year. 1867, loaned the same to the said Wadlington & Dyche, and invoiced the mules to them at about $500, and the wagon at about $100, but with the understanding that the same were not to. be their property, and that they were to return the same, or account for such as might be lost or destroyed, at the invoice price. That said mules were furnished to the said Wadlington & Dyche to aid in the cultivation of said plantation and the making of said crop, and were so used by them.

The complainants further state that the said 1800 bushels of corn and 16 bales of cotton, and said mules and wagon, are in the possession of Eli Waites, the sheriff of said county, who holds the same under said attachment for rent. And as to the mules and wagon, they are advised that it is a matter of doubt whether they are the property of said John T. Dyche, or not. Be this, however, as it may, it is insisted that he is still entitled to a lien on the same to pay for his said supplies. And as to the crop made on said plantation, it is insisted that Gates, Gillespie & Co. have a prior right to satisfaction out of it, and then the right of the' said John T. Dyche to be paid next attaches. The bill concludes with a prayer for appropriate process and a writ of sequestration, and that upon final hearing complainants’ liens may be decreed to be good and valid and preferable to all others as to the crop, and for an account and sale of the property.

To this bill the defendant, Mary P. Marye, demurred, and the demurrer was overruled, and an appeal was taken to this court by the appellant, who assigns for error that the court below erred in overruling the appellant’s demurrer to complainants’ bill.

The main question presented by this record for our consideration is, Has the landlord a prior right or superior claim to have satisfaction of his- debt for rent out of the property of his tenant to that of any other creditor by mortgage, or of one having a specific lien in writing on the property of the tenant •anterior to the levy of the attachment on the same for rent? This, it must be conceded, is a vexed question, which, for the first time, we believe, has been presented for the decision of this court.

The common-law process of distress does not exist in this State. The whole policy of the law respecting distresses for rent has been changed by our statute, and a distress for that purpose is now no more than a summary method of seizing under a writ of, attachment the tenant’s property and selling the same to satisfy the rent which he owes. And the property seized must belong to the tenant. The statute provides that the attachment for rent shall issue against the goods and chattels of the'tenant, and the officer is commanded to distrain the same to an amount sufficient to satisfy the rent and costs. Bev. Code, 339, art. 1. But if the tenant have only a limited property or interest in such goods and chattels, the same shall be liable to be distrained and sold for the property or interest such tenant may have therein. Bev. Code, 312, art. 12. It rests upon the general right of the tenant to dispose of his property, which is no more embarrassed on account of rent in arrear than it is by any other description of outstanding debts.

Bent is not per se a lien on goods found on the demised premises. It binds as a lien only when the goods are seized under an attachment for rent. In the meantime, he may sell, dispose of, or incumber the same bona, fide and for valuable consideration, notwithstanding the existence of a debt for rent. The power of alienation by the tenant exists until the goods are seized under an attachment for rent, without any limitation or restriction on account of rent.

The mortgage executed by "Wadlington & Dyche and filed for record on the 30th of September, 1867, before the levy of the attachment for rent, gave to the mortgagees, Gates, Gillespie & Co., a prior right to satisfaction of their claim out of the property covered by the mortgage. And the written contract made by "Wadlington & Dyche with John T. Dyche, which was filed and enrolled in the clerk’s office of the Circuit Court of said county of Sunflower, became a lien under the statute of 1867, upon the equity of redemption of the property embraced in the mortgage to Gates, Gillespie & Oo., except that which is exempt by law from levy and sale under execution; and also on the animals and implements employed in cultivating the plantation, which shall have been purchased with the money advanced by the said John T. Dyche. Pamphlet Acts, 1867, p. 569.

Gates, Gillespie & Co., and John T. Dyche having specific liens on the property in controversy anterior in point of time to the lien of the attachment for rent, are, in our opinion, entitled to prior satisfaction of their respective claims out of the property, in accordance with the maxim, qui prior est in tempore, fotior est injure.

The statute prohibits the judgment creditor of the tenant from taking the goods and chattels on the demised premises by virtue of a writ of execution, unless the party so taking the same shall, before the removal of the goods off such premises, j>ay or tender to the landlord or lessor thereof all money due for the rent of the said premises at the time of taking' such goods and chattels in execution, provided the money due shall not amount to more than one year’s rent; and if more be due, then tiie party suing out such execution, paying or tendering to such landlord or lessor one year’s rent, may proceed to execute his judgment. Pev. Code, 531, art. 288. This legislation is founded on the idea that the landlord has no common-law lien here for rent, and hence the necessity of this special protection, by statute, of the interest of the landlord to the extent of one year’s rent against the general lien of a judgment. We think this provision of the statute does not affect the tenant’s conveyance by mortgage in good faith and for valuable consideration of the property on the demised premises, or where there is a special lien thereon created by contract, prior to the levy of the attachment for rent.

According to the allegations of the bill, the complainant, John T. Dyche, was owner of the five mules and wagon, and had a full, adequate, and complete remedy at law, and had the defendant Mary P. Marye’s demurrer been limited to this part of the bill, it should have been sustained. But as the demurrer is applied to the whole bill, it cannot be sustained as to this part only. For it is a general rule, that a demurrer cannot be good as to a part which it covers, and bad as to the rest, and therefore it must stand or fall all. together. Story’s Equity Pleading, 400, § 443.

For these reasons we think the court below did not err in overruling the appellant’s demurrer to the bill of complaint.

The decree of the court below will be affirmed, and leave given to answer the bill within sixty days from this time.